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FILED

United States Court of Appeals


Tenth Circuit

March 18, 2009


UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

ALLSTATE INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
WILLIAM COVALT, individually,
LOREN MORGAN, as personal
representative of the estate of
Linda Covalt, deceased,

Nos. 08-6169 & 08-6170


(D.C. No. 5:07-CV-01275-HE)
(W.D. Okla.)

Defendants-Appellants.

ORDER AND JUDGMENT *

Before McCONNELL, McKAY, and GORSUCH, Circuit Judges.

Plaintiff Allstate Insurance Company filed this declaratory judgment action


seeking a determination of the amount it was required to pay under an automobile
liability policy and an umbrella policy, with limits of $250,000 and $2,000,000,

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

respectively, to defendants William Covalt and Loren Morgan, as personal


representative of the estate of Mr. Covalts late wife, Linda. The district court
took jurisdiction to determine the rights of the parties, decided that Oklahoma law
applies to this diversity case, and granted summary judgment to Allstate, holding
(in relation to the issues in this suit) that Allstate owed defendants no more than
$25,000 in liability coverage. Defendants subsequent appeals were consolidated.
We have jurisdiction under 28 U.S.C. 1291 and affirm.

I. Facts and Procedural History


Mr. Covalt is a citizen of Oklahoma and his late wife, Linda, was also a
citizen of Oklahoma. In August 2007, Mr. Covalt lost control of his automobile
while they were driving through New Mexico, and his wife died from injuries
sustained in this single-vehicle accident.
The Covalts had two policies with Allstatean automobile liability policy
and a personal umbrella policy issued to their daughter, LaDon, also a citizen of
Oklahoma. Allstate pointed out to Mr. Covalt that the automobile policy
contained a step-down provision that reduced its liability coverage from
$250,000 to Oklahomas minimum required coverage of $25,000 because the
injured person, Mrs. Covalt, was a resident relative of the insured, Mr. Covalt.
Allstate further contended to Mr. Covalt that the umbrella policy excluded
coverage for personal injury to an insured and, therefore, provided no coverage

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for Mrs. Covalts death. Mr. Covalt contended that New Mexico law applied to
his claims, and that New Mexico would not enforce the step-down provision
reducing the policy limits of the auto policy. He refused to accept the amount
Allstate offered him.
Because the parties were unable to agree on coverage, Allstate filed this
declaratory judgment action on November 13, 2007, naming Mr. Covalt as the
defendant both individually and as the surviving spouse of Linda Covalt.
Defendant Loren Morgan was subsequently named the personal representative of
Mrs. Covalts estate, and he filed a wrongful death action against Mr. Covalt on
behalf of her estate in New Mexico state court on December 6, 2007. Mr. Morgan
filed two amended complaints in that case, adding Allstate as a defendant and
adding a claim for a declaratory judgment that the step-down provision in the
insurance policy cannot be enforced because it violates New Mexico public
policy. Aplt. App., Vol. II, Tab 10, at 2-3.
Allstate then moved in this action to substitute Mr. Morgan for Mr. Covalt
in his capacity as the surviving spouse of Linda Covalt and to amend its
complaint to add a claim for a declaratory judgment that there was no coverage
under the personal umbrella policy issued to LaDon Covalt. Mr. Covalt moved to
dismiss or stay this declaratory judgment action because of the pending state
court suit. In an order filed on April 15, 2008, the district court granted Allstates

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motion to substitute Mr. Morgan as a defendant and to amend its complaint, and
denied Mr. Covalts motion to dismiss or stay this suit. See generally id.
Allstate then moved for summary judgment in this suit, and Mr. Morgan
moved to dismiss or stay this suit. In an order filed on May 13, 2008, the district
court denied Mr. Morgans motion, concluding that it amounted to a request for
reconsideration of the courts earlier decision [that] presents nothing that alters
this courts previous analysis and determination of the question. Id., Tab 15,
at 1. Mr. Covalt and Mr. Morgan then moved for a continuance under
Fed. R. Civ. P. 56(f) in order to conduct limited discovery on an asserted
inconsistent position taken by Allstate in a New Jersey case on the choice of law
issue. Id., Tab 16.
In an order filed on June 20, 2008, the district court denied defendants
motion for a continuance and granted Allstates motion for summary judgment.
Id., Tab 24. The court noted that defendants sought the sealed portions of
Allstates briefing in the New Jersey case, but such extrinsic evidence would be
improper to prove the existence of an ambiguity in the contract language, and the
[unsealed] portions of the Allstate brief already available to defendants enable
them to frame whatever argument they think is applicable in construing the
contract language. Id. at 5 n.2. The court also decided that Oklahoma law, not
New Mexico law, applies to this dispute. Id. at 3-9. The court noted that [n]o
party has pointed to any alleged ambiguity [in the policy language] and the court
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determines that the relevant language in both the automobile policy and the
personal umbrella policy is unambiguous so the court will apply the plain
meaning of the policy provisions. Id. at 9. The court concluded that Allstate
was obligated under the automobile policy for only $25,000 in liability coverage
because the step-down provision was enforceable. Id. at 10-11. The court
further determined that an enforceable exclusion in the umbrella policy precluded
coverage in this case. Id. at 11. The district court entered judgment in Allstates
favor on July 8, 2008.

II. Issues and Legal Analysis


Defendants raise five issues on appeal: (1) the district court abused its
discretion by not dismissing or staying this declaratory judgment action when
there was a pending action in New Mexico state court concerning the same
subject matter and parties; (2) the district court erred by denying their motion for
a continuance under Fed. R. Civ. P. 56(f) in order to conduct limited discovery on
the asserted inconsistent position taken by Allstate in other proceedings
concerning the choice of law issue; (3) the district court erred either by failing to
consider the choice of law clause in the policy or by misconstruing it, resulting in
an incorrect determination that Oklahoma law rather than New Mexico law
applied; (4) Allstate is estopped from arguing that Oklahoma choice of law rules
apply; and (5) the district court erred in determining that Oklahoma would apply

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its own law rather than New Mexico law regarding the exclusion in the umbrella
policy. We review the grant of summary judgment de novo. Phillips v. New
Hampshire Ins. Co., 263 F.3d 1215, 1218 (10th Cir. 2001). We reject defendants
assertions of error.
We review the district courts decision to proceed with the declaratory
judgment action for an abuse of discretion. See Brillhart v. Excess Ins. Co. of
Am., 316 U.S. 491, 494-95 (1942); United States v. City of Las Cruces, 289 F.3d
1170, 1183 (10th Cir. 2002). Under the Declaratory Judgment Act, the district
courts have unique and substantial discretion in determining whether to declare
the rights of litigants when duplicative state proceedings exist. City of Las
Cruces, 289 F.3d at 1179-80 (quoting Wilton v. Seven Falls Co., 515 U.S. 277,
286 (1995)). We have previously set out several fact-intensive and highly
discretionary factors for district courts to consider. State Farm Fire & Cas. Co.
v. Mhoon, 31 F.3d 979, 983 (10th Cir. 1994). We do not review the district
courts analysis of these factors de novo. Id. Rather, [w]e give the district
courts assessment of each factor great deference[,] City of Las Cruces, 289 F.3d
at 1183, and will only ask whether the trial courts assessment of them was so
unsatisfactory as to amount to an abuse of discretion, Mhoon, 31 F.3d at 983.
The district court carefully evaluated the facts of this case in light of the Mhoon
factors. See Aplt. App., Vol. II, Tabs 10, at 3-7. Defendants have not convinced
us that the court abused its discretion in deciding to take jurisdiction. We affirm
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the district courts decision on this point for substantially the same reasons as
those stated in the courts April 15, 2008, and May 13, 2008, orders. See Aplt.
App., Vol. II, Tabs 10, at 3-7, Tab 15.
We review the district courts denial of a Rule 56(f) request for an abuse
of discretion. Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2008).
Defendants asserted in their motion for a continuance that they needed time to
obtain the sealed portions of Allstates briefing in a New Jersey case because
those portions would provide evidence of ambiguity in the choice of law
provisions in the insurance policies in this case. Aplt. App., Vol. II, Tab 16, at 2.
The district court held that defendants failed to make the necessary showing to
support their request because extrinsic evidence was not relevant to prove the
existence of an ambiguity in policy language and because defendants already had
the relevant unsealed portions of Allstates briefing with which to frame an
argument concerning the construction of the policy language. Id., Tab 24,
at 5 n.2. Defendants argue that the district court incorrectly assumed that the
policy language at issue was unambiguous. We are not persuaded that the district
court abused its discretion in denying their request for a continuance under
Rule 56(f) and affirm on this point for substantially the reasons stated by the
district court in its June 20, 2008, order. Aplt. App., Vol. II, Tab 24, at 5 n.2.
Because the parties do not dispute the facts, we review the district courts
choice of law determination de novo. Anderson v. Commerce Constr. Servs., Inc.,
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531 F.3d 1190, 1193 (10th Cir. 2008). We also review the district courts
construction of the choice of law provisions in the insurance policies de novo.
Level 3 Commcns, LLC v. Liebert Corp., 535 F.3d 1146, 1154 (10th Cir. 2008).
The district court clearly and thoroughly explained why Oklahoma law, not New
Mexico law, applies both to the choice of law question and the interpretation of
the choice of law provisions in the insurance policies, beginning with the settled
proposition that a federal court sitting in diversity applies the choice of law rules
of the forum state. Aplt. App., Vol. II, Tab 24, at 3 (citing Tenth Circuit and
Supreme Court authority). Like the district court, we are unpersuaded by
defendants argument that Allstate should be estopped from arguing that
Oklahoma choice of law rules apply. See id. at 5 n.2. We also reject defendants
argument that the district court erred in determining that Oklahoma would apply
its own law rather than New Mexico law regarding the exclusion in the umbrella
policy. We affirm the district courts analysis and conclusions for substantially
the same reasons as those set forth in the district courts June 20, 2008, order.
See id. at 3-11.
Allstates Motion for Leave to File Sur-Reply Brief is granted. Allstates
motion to strike defendants supplemental authority and certain portions of
defendants reply brief is denied.

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The judgment of the district court is AFFIRMED.

Entered for the Court

Michael W. McConnell
Circuit Judge

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